United States District Court, S.D. Ohio, Western Division
CYNTHIA CARPENTER-BARKER, as next friend of MEGAN CARPENTER, Plaintiff,
OHIO DEPARTMENT OF MEDICAID, et al., Defendants.
ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT
(DOCS. 50, 52)
Timothy S. Sack, United States District Judge
civil action is before the Court regarding the parties'
cross motions for summary judgment (Docs. 50, 52) and their
supporting memoranda (Docs. 53, 56, 57, 58, 60, 61).
Cynthia Carpenter-Barker brings this action on behalf of her
daughter, Megan Carpenter. Megan is a woman in her early
thirties who suffers from multiple disabling medical
impairments. Her condition is medically complex, with her
diagnoses including, among others: encephalopathy NOS;
general convulsive with intractable epilepsy; autism;
profound mental retardation; cognitive impairment;
hypothyroidism NOS; generalized muscle weakness; profound
sensorineural hearing loss (deafness); ataxia; and
sub-cortical myoclonus. (Doc. 6-1, at 2). Megan has impaired
mobility, self- injurious behaviors, outbursts and
aggression, and is unable to perform activities of daily
living for herself. Id. Megan also suffers from
seizures that require treatment with medication administered
directly after a seizure (although the parties disagree on
the frequency and severity of these seizures). Id.
lives with her mother and receives in-home nursing care seven
days per week. Megan is enrolled in the Individual Options
(“I/O”) home and community-based services waiver
program through the Ohio Department of Medicaid
(“ODM”), through which she receives
homemaker/personal care services. (Doc. 1-2, at 2). The
Butler County Board of Developmental Disabilities administers
Megan's I/O waiver. Id. Megan is also enrolled
in Medicaid's State Plan (“State Plan”) and
receives 128 hours per week of private duty nursing
(“PDN”) services through the State Plan.
central dispute in this case revolves around the number of
PDN hours Megan is afforded by the State Plan.
Defendants' motion provides a helpful, neutral factual
background on the nature of PDN:
PDN is a continuous nursing service that requires the skills
of, and is performed by, a nurse for four to twelve hours at
a time (subject to certain exceptions not relevant here).
Ohio Admin. Code 5160-12-02(A). PDN is provided in a
person's home, unless it is medically necessary for a
nurse to accompany the person in the community. Ohio Admin.
Code 5160-12-02(B). For individuals who are, like Megan,
enrolled in a waiver program administered by the Department
of Developmental Disabilities, ODM will authorize Medicaid
coverage only after a “prior authorization”
request is submitted and ODM determines, among other things,
that the requested services are medically necessary.
See Ohio Admin. Code 5160-12-02.3(C).
Medical-necessity determinations are individualized,
fact-based determinations. At all times relevant to this
case, a service was medically necessary if it was necessary
for the diagnosis or treatment of disease, illness, or injury
and without which the patient could be expected to suffer
prolonged, increased or new morbidity, impairment of
function, dysfunction of a body organ or part, or significant
pain and discomfort. Ohio Admin. Code 5160-1-01(A) (2014). A
medically-necessary service also had to:
1) Meet generally accepted standards of medical practice;
2) Be appropriate to the illness or injury for which it is
performed as to type of service and expected outcome;
3) Be appropriate to the intensity of service and level of
4) Provide unique, essential, and appropriate information
when used for diagnostic purposes;
5) Be the lowest cost alternative that effectively addresses
and treats the medical problem; and
6) Meet certain general principles regarding reimbursement
for Medicaid-covered services.
Ohio Admin. Code 5160-1-01(A)(1) - (6) (2014).
If ODM determines that requested PDN hours are medically
necessary and meet other prior-authorization criteria, the
Medicaid program will pay for up to the number of PDN hours
approved, for a limited time period (for example, 30 PDN
hours per week, for one year). See Ohio Admin. Code
5160-12-02.3(C)(2)(a). PDN may not be authorized for more
than one year at a time. Ohio Admin. Code 5160-12-02.3(C)
(“The period for which PDN authorization applies shall
not exceed three hundred sixty-five days.”). If an
individual wants PDN to continue past the end of a given
prior-authorization period, she (or her provider) must submit
another prior-authorization request. If ODM does not
completely grant an individual's request for prior
authorization of PDN, the individual is entitled to an
administrative hearing called a “state hearing.”
Ohio Admin. Code 5160-12-02.3(C)(2)(b); 5101:6-3-01(B)(6). If
unsatisfied with the outcome of a state hearing, an
individual may ask ODM to internally review the decision by
requesting an “administrative appeal.” Ohio
Admin. Code 5101:6-8-01(A). An individual may appeal the
outcome of an administrative appeal to common pleas court
pursuant to Ohio Rev. Code §§119.12 and 5101.35.
(Doc. 52, at 7-9).
to the process outlined above, ODM has reviewed the PDN hours
authorized for Megan annually for several years. For the last
decade, Defendants have consistently attempted to reduce the
number of PDN hours authorized for Megan after each
evaluation, arguing that ODM's evaluations of Megan
demonstrate that Megan's condition can be managed
adequately with reduced PDN time. Plaintiff has consistently
fought against any PDN reduction using the administrative
appellate system authorized by statute. (See Doc.
50, 13-16). Although Megan had been authorized 168 hours of
PDN per week in 2008, she has lived with 128 hours since
2010. (Id. at 13). Plaintiff has thwarted ODM's
annual attempts to reduce Megan's PDN hours each year
since then, either through winning her cases on appeal or
through negotiated settlements. (See Id. at 13-15).
December 2014, despite having reached, only four months
previously, a settlement agreement with Plaintiff to continue
Megan's PDN at 128 hours per week, ODM again issued
notice to Plaintiff that it proposed to reduce Megan's
PDN hours from 128 hours per week to 56 hours per week. (Doc.
21, at 11). This notice spurred Plaintiff to file the present
amended complaint raised the following claims against
1) A claim alleging that Defendants' frequent and
continued proposals to reduce Megan Carpenter's PDN
hours, most recently in 2014, amount to a failure to provide
procedural due process in violation of 42 U.S.C. §
2) A claim that Defendants' efforts to reduce Megan
Carpenter's PDN hours violate the “integration
mandate” of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12132.
3) A claim that Defendants' efforts to reduce Megan
Carpenter's PDN hours violate the “integration
mandate” of the Rehabilitation Act, 29 U.S.C. §
794 et seq.
(Id. at 14-19). On December 12, 2015, the parties
filed a “joint stipulation regarding scope of
Plaintiff's request for relief and Defendants'
fundamental alteration affirmative defense” that
purported to clarify the exact relief Plaintiff seeks through
this civil action. (Doc. 36, at 31-34). That document
identifies the following as Plaintiff's claims for
1) Ms. Carpenter requests that the Court assume jurisdiction
over this matter.
2) Ms. Carpenter seeks through this lawsuit a declaration
from the Court that Defendants' actions in proposing to
reduce the number of hours of PDN services authorized for Ms.
Carpenter through the State Medicaid plan in 2014 places her
at risk of institutionalization in violation of the ADA and
3) Additionally, Ms. Carpenter seeks an order from the Court
requiring Defendants to reimburse the cost of providing Ms.
Carpenter with the amount of nursing services she needs to
prevent institutionalization or a risk of
institutionalization. Ms. Carpenter intends to present
evidence that she needs a total of 24 hours per day, 7 days
per week of nursing services provided by a registered nurse
or a licensed practical nurse under the direction of a
4) Further, Ms. Carpenter seeks an order from the Court
requiring Defendants to refrain from attempting to reduce the
number of hours of nursing services authorized for Ms.
Carpenter unless or until Ms. Carpenter's treating
physician determines that her medical conditions have
improved such that her need for nursing services is ...